Protected Formula?: Senate Bill Gives Frackers an Out on Disclosing Their Chemical Cocktails

More legislative action from the fracking front: A Pennsylvania senator has introduced a bill that would “amend the Safe Water Drinking Act to repeal a certain exemption for hydraulic fracturing.” That sounds like good news, right? But when you read the bill, it seems to add its own loophole big enough to drive a drilling rig through.

Sen. Robert P. Casey’s bill seems to require drillers to tell us exactly what they’re injecting into the earth to release all that natural gas – complete with material safety data sheets. The part that has public advocates and enviros hopeful is this:

(B) PUBLIC AVAILABILITY – The State (or the Administrator, as applicable) shall make available to the public the information contained in each disclosure of chemical constituents under subparagraph (A), including by posting the information on an appropriate Internet website.

It makes you question why we would ever allow drillers not to disclose their chemical cocktails, but we’ll drop this in the “better late than never” file.

But as we read further down in Casey’s bill…what’s this? A “catch all” loophole?

(D) NO PUBLIC DISCLOSURE REQUIRED – Nothing in subparagraph (A) or (B) authorizes a State (or the Administrator) to require the public disclosure of any proprietary chemical formula.

There’s the other shoe dropping. So subparagraph (D) renders the bill useless: Drilling companies will simply declare their own secret fracking sauce a “proprietary chemical formula,” and dodge the disclosure requirement. That type of proprietary information has been long protected. But it’s a stretch to compare the chemical brew of drillers to, let’s say, the recipe for Coca-Cola, which remains one of the most heavily guarded product formulas in the world.

Casey’s bill seems to remain silent on who decides if a company has a case for making the “proprietary” label stick, and, of course, that could lead to protracted court battles. Hopefully nobody thinks the public is that stupid – but then again, when you’ve been injecting lord-knows-what into the ground for a half-decade with an exemption from the Clean Water Act, maybe you have some basis for that belief.

A cynic might say that this is a fake bill designed to reduce the heat on drilling bans and other such regulatory action. And a cynic might say we should keep our collective eye out for more of these types of loopholes as the legislative battle over fracking reaches a new pitch.

We will indeed watch the legislative process very carefully – but, right now, this particular bill accomplishes little on the “chemical disclosure” front.